December 29, 2011

 Compliance Matters

NLRB POSTPONES (AGAIN) ITS CONTROVERSIAL

NOTICE POSTING DEADLINE

 

     This is an update to our Compliance Matters dated October 7, 2011.

http://www.brgslaw.com/compliance_matters/2011_1_oct/index.html 

 

     The National Labor Relations Board has postponed to April 30, 2012 the implementation date of its rule requiring most private sector employers to post a notice advising employees of their rights to unionize the workforce.

 

     The postponement, which the Board announced December 23, was made at the request of the federal judge in Washington D.C. overseeing a pair of lawsuits by the National Association of Manufacturers (NAM) and the National Federation of Independent Business (NFIB), challenging the Board's authority to require the rights notice.

 

     As we previously reported, the Board had postponed the notice-posting rule's implementation at the judge's request, from its original effective date of November 14, 2011 to January 31, 2012.

 

    The 11" x 17" Notice, which must be posted both in English and in any other language spoken by more than 20 percent of employees, informs employees about their rights under federal law: (i) to form, join or assist a union in its efforts to organize an employer's workforce; (ii) to bargain collectively; (iii) to discuss wages, benefits and other conditions of employment; and (iv) to raise complaints with management, or withhold services in protest of working conditions (strike) and even picket.

 

    The Notice also provides examples of employer conduct which is prohibited by the law.

 

    Under the Rule, an employer's failure to post the notice can have serious consequences. For example, it may extend the 6-month period for filing unfair labor practice charges against an employer. Also, it may be evidence of an employer's unlawful motive in any unfair labor practice case based on other violations of the Act.

 

    The U.S. Chamber of Commerce also sued the NLRB in a South Carolina federal court. In addition to arguing that the Board lacks authority under the NLRA to issue the rule, the Chamber's suit urges that the rule is invalid because the notice does not mention state right-to-work laws, was not adopted in compliance with the federal regulatory process, and violates employers' First Amendment rights by forcing them to publish ideological views with which they may disagree. In November, both the Chamber and the Board filed motions asking the court to rule for it without a trial.

 

    The South Carolina federal court will likely announce its ruling on the Chamber's case at a hearing set for February 6, 2012. The losing party will almost certainly appeal. An appeal would have to be filed with the Fourth Circuit U.S. Court of Appeals, which is generally considered the most conservative of the federal Courts of Appeals.

 

    Should the Fourth Circuit in the Chamber's case and the District of Columbia Circuit in the NAM/NFIB cases reach different decisions, the U.S. Supreme Court may well have to decide the matter.

 

    We will keep you abreast of developments regarding the NLRB notice and any legislative changes to the NLRB's authority or election procedures.

 

    If you would like to know more about our traditional labor relations services, please call your contact at the firm at (818) 508-3700, or visit us on the web, at www.brgslaw.com.

 

    On behalf of everyone here at BRGS, let me take this opportunity to personally wish you and yours a very prosperous, healthy and litigation-free 2012.

  

Sincerely,

 

 

Richard S. Rosenberg

 

Partner

BRG&S, LLP 

 


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